On December 30, 2005, the Complainant (Union) filed with the WERC a complaint
alleging that
the Respondent (City) had violated Secs. 111.70(3)(a)4 and 5, of the Municipal Employment
Relations
Act (MERA), by notifying the Union on December 19, 2005, that the Police Union
will be required to
participate in a DBS Section 105 Plan Service Agreement (Health Reimbursement
Arrangement) (HRA)
for calendar year 2006.

The WERC appointed the undersigned Marshall L. Gratz to act as Examiner in the
matter. The
Examiner issued a notice scheduling a hearing in the matter for March 7, 2006.

On February 13, 2006, the City filed its answer denying that its alleged action
constituted a
prohibited practice, affirmatively alleging that the parties' calendar year 2004 agreement
remains in
effect in 2006 by reason of an evergreen clause and authorizes the City to continue
implementation of
the HRA in calendar 2006, moving to defer the complaint to grievance arbitration under the
parties'
2004 agreement, and renouncing any technical objections which would prevent a decision on
the merits
by the arbitrator.

No. 31590-A

Page 2

Dec. No. 31590-A

Pursuant to notice, the Examiner conducted a pre-hearing conference in the matter on
February
23, 2006, during which the Union opposed the motion to defer and the Examiner called upon
the Union
to submit by e-mail any further statement of position regarding the motion that it wished
considered by the
Examiner. On February 27, 2006, the Union, by its Attorney, advised the Examiner
by e-mail that the
Union does not object to deferral "if the Commission maintains jurisdiction for any remedies
not available
in the arbitration proceeding, including costs and attorney fees," citing, City of Princeton,
Dec. No.
31041-B (WERC, 6/05).

Upon consideration of the complaint, the answer and motion to defer (which included
a copy of
the parties' 2004 Agreement) and the Union's February 27, 2006, statement of position, the
Examiner is
satisfied: that the issues raised by the complaint are clearly addressed and made subject to
final and binding
grievance arbitration by the parties' 2004 Agreement; that those issues, while of significance
to the instant
parties, do not involve important issues of law or policy; that the City has renounced any
technical
objections which would prevent a decision on the merits by the arbitrator; that there is,
therefore, a
substantial probability that deferral to arbitration will resolve the merits of the dispute in a
manner not
repugnant to the underlying purposes of MERA; and that further proceedings regarding the
instant
complaint should therefore be held in abeyance and deferred pending the results of grievance
arbitration
regarding those issues.

Now, therefore, the Examiner issues the following

ORDER

1. The processing of the instant complaint is hereby deferred pending the results
of grievance
arbitration regarding the issues giving rise to the complaint.

2. The instant complaint shall be held in abeyance pending the results of
grievance arbitration
regarding the issues giving rise to the complaint. Upon a motion by either party, the
Examiner will consider
whether the arbitration process has resolved the subject matter of the instant complaint in a
manner that is
not repugnant to the underlying purposes of the Municipal Employment Relations Act.

3. The hearing scheduled for March 7, 2006, is hereby cancelled.

Dated at Shorewood, Wisconsin, this 28th day of February, 2006.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Marshall L. Gratz, Examiner

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Dec. No. 31590-A

CITY OF MARSHFIELD

MEMORANDUM ACCOMPANYING
EXAMINER'S ORDER

DEFERRING TO GRIEVANCE
ARBITRATION

The history of the instant proceeding and the pleadings filed to date are described in
adequate detail
in the preface to the Order.

In Brown County, Dec. No. 19314-B (WERC, 6/83) the Commission discussed the
deferral
principles which are dispositive here as follows:

The Commission has previously stated that Sec. 111.70(3)(a)4
refusal to bargain
allegations will be deferred to the contract grievance arbitration forum in appropriate cases
. . . in which the Respondent objects to the Commission exercise of jurisdiction in the
matter. Such deferral advances the statutory purpose of encouraging voluntary agreements
. . . by not under-cutting the method of dispute resolution agreed upon by the parties in
their collective bargaining agreement. Indeed, if the Commission were to indiscriminately
hear and decide every claim that a party's alleged deviation from a contractually specified
standard is an unlawful unilateral change refusal to bargain, it would undermine the
Commission's longstanding policy of ordinarily refusing to exercise its
Sec. 111.70(3)(a)5,
Stats., jurisdiction absent exhaustion of contractual grievance procedures.

In sum, because Respondent has consistently urged WERC deferral of the disputed
claim
of unlawful unilateral change in overtime assignment procedures to the contract grievance
arbitration procedure and because there is a substantial probability that submission of the
merits of that dispute to that arbitral forum will resolve the claim in a manner not repugnant
to MERA, deferral is appropriate in this aspect of the case . . . .

The Commission has established the following three criteria as necessary to indicate
the requisite
substantial probability that deferral to arbitration will resolve the merits of the dispute in a
manner not
repugnant to the underlying purposes of MERA:

(1) The parties must be willing to arbitrate
and renounce technical objections which
would prevent a decision on the merits by the arbitrator;

(2) The collective bargaining agreement must clearly address itself
to the dispute; and

Accordingly, the further processing of the complaint has been deferred and the
complaint will be
held in abeyance pending the results of grievance arbitration regarding the issues giving rise
to the complaint.
Upon a motion by either party, the Examiner will consider whether the arbitration process
has resolved the
subject matter of the instant complaint in a manner that is not repugnant to the underlying
purposes of the
Municipal Employment Relations Act. See, e.g., Rock County, Dec. No. 29970-B (WERC,
7/23/01).
The Union will have an opportunity, in connection with the consideration of such a motion,
to present
arguments based on the City of Princeton, supra, case
referenced in its February 27, 2006, statement
of position.